Final assessment
While an administrative appeal is pending, there is no consummated substantive offense. Premature indictments can be dismissed.
Economic crime · Law 8,137/1990
Tax crimes: when a tax debt becomes a criminal case and how the defense acts
The tax authority may only refer a case for prosecution after the final tax assessment. Before that, and even afterwards, payment and installment plans change the course of the case.
Straight answer: when tax evasion becomes a crime
Offenses against the tax order (articles 1 and 2 of Law 8,137/1990) require fraud: omitting information, forging documents, entering inaccurate data or failing to pay over tax withheld from third parties. For the offenses of article 1, prosecution depends on the final tax assessment (Binding Precedent 24 of the Supreme Court). Full payment of the tax, at any time, extinguishes punishability, and an installment plan suspends prosecution while it is being honored.
This page is for partners, managers, accountants and finance directors who received a criminal tax referral, a summons or an indictment for a tax offense. Practice throughout the State of São Paulo, Brazil, including inland and coastal districts, with in-person meetings in São Paulo (Paulista and Tatuapé offices) or by video call.
Central points of the defense in tax crimes
Liability of the manager
Being a partner is not enough. The prosecution must show who had management powers and decided on the conduct in the period. Minutes and powers of attorney define that.
Default versus fraud
Failing to pay a declared tax due to financial difficulty is not an offense under article 1. The discussion on declared but unpaid ICMS requires analysis of habitual conduct and intent.
Payment and installments
Full payment extinguishes punishability; an installment plan suspends the case. The financial strategy is defined together with the criminal defense.
Accountants and third parties
Professionals who only made entries based on the client's documents are not liable without proof of their own intent.
Amount and insignificance
For federal taxes, debts below the threshold the Treasury itself uses for enforcement may exclude criminal liability.
Decisions that need coordination
Administrative and criminal defense together
Arguments used in the tax case echo in the criminal one. The two fronts need a single line of reasoning.
Regularization before the indictment
Payment or installments before the indictment is accepted prevents the case. Financial feasibility is assessed urgently.
Who is liable
Correctly identifying the manager of the period protects non-managing partners and avoids generic indictments against the whole shareholder base.
How the work is organized
1. Tax and criminal diagnosis
Reading the assessment notice, the referral and the status of the tax credit.
2. Integrated strategy
Choosing among challenge, payment, installments and criminal defense, according to the stage and amounts.
3. Defense in the case
Response to the charge, requests for dismissal or suspension and production of accounting evidence.
Keep all accounting documentation for the period, including emails with the accountant. In tax crimes, proving who decided what matters as much as discussing the amount.
Frequently asked questions about tax crimes
If I pay the tax, does the criminal case end?
Full payment, including interest and penalties, extinguishes punishability of tax offenses, even after the indictment is accepted, under current legislation and case law.
Can the company's accountant also be indicted?
Yes, if there is proof of conscious participation in the fraud. Technical execution of entries based on documents provided by the client, without intent, is not an offense.
Is declared but unpaid ICMS a crime?
The Supreme Court held that habitual, intentional failure to pay over ICMS charged to consumers may constitute the offense of article 2, II. Occasional default due to financial difficulty does not qualify.
Official references and related pages
Reference legislation in Brazil. Classification depends on the tax, the stage of the assessment and the described conduct.
Received a tax referral or an indictment for a tax offense?
Send the assessment notice and the status of the debt through the secure channel. The screening identifies the stage, who is liable and the regularization alternatives.